BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100000290 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his previous application for payment of Traumatic Servicemember's Group Life Insurance (TSGLI) benefits.

2.  The applicant states he suffered a traumatic injury caused by an external force that qualifies for TSGLI benefits under the Servicemember's Group Life Insurance Traumatic Injury Protection Program Procedural Guide.

3.  The applicant's supporting documentation is identified in a list of attachments provided by his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be granted TSGLI benefits.

2.  Counsel states the office of the Servicemember's Group Life Insurance wrongly denied the applicant's application for TSGLI benefits on 18 March 2008 and his appeal on 22 May 2008.  The Army Board for Correction of Military Records (ABCMR) also wrongly declined to correct his records, or alternatively, return his claim to the TSGLI board to rehear his claim.

3.  Counsel states this appeal challenges the denials and proves that the applicant is entitled to full TSGLI benefits of $100,000.00 because he suffers paraplegia from a qualifying traumatic event.  He is, and will forever be, 

paralyzed as a result of a traumatic injury from a qualifying traumatic event.  Paraplegia is sufficient to receive TSGLI benefits and consistent with his claim, the Department of Veterans Affairs awarded him 100 percent (%) disability rating percentage.

4.  Counsel states that when considering the applicant's appeal, it must bear in mind that the standard of proof is a preponderance of the evidence, which is the lowest legal standard in existence.  Applying this standard, he only needs to show that it is "more likely than not" that he qualifies for TSGLI benefits.  If the Board believes that it is at least 51% likely that he is entitled to TSGLI benefits, it must award him those benefits.

5.  Counsel states Congress was very deliberate when it adopted the "more likely than not" test.  It passed the TSGLI law to ensure injured troops received the greatest possibility of coverage.  Clearly evidenced in the TSGLI Procedural Guide, Congress intended TSGLI to help traumatically injured service members and their families with financial burdens associated with recovering from severe injury.  The applicant and his family have suffered tremendous burdens as a result of the debilitating paralysis.

6.  Counsel states the Principal Deputy Under Secretary of Defense for Personnel and Readiness gave a statement on the TSGLI program before the Senate Committee on Veterans Affairs and stated the TSGLI is an extraordinary insurance program for people in uniform and one of the most significant goals of the TSGLI program was "ensuring uniform application of standards in the TSGLI eligibility certification process."  If a member of the Air Force receives a benefit under the TSGLI for an incurred traumatic injury, a member of the Army experiencing a similar injury should receive the same benefit.

7.  Counsel states that according to the Navy standard, preponderance of the evidence standard is "evidence that tends to prove one side of a disputed fact by outweighing the evidence on the other side by more than 50%.  Preponderance of evidence does not necessarily mean a greater amount of evidence; rather it means a superiority of evidence on one side or the other of a disputed fact.  It is a term that refers to the quality rather than quantity of the evidence.

8.  Counsel states that the applicant can and does prove in this appeal by a preponderance of the evidence that he is entitled to full TSGLI benefits.

9.  Counsel provides the 17 enclosures identified in a list of exhibits and attachments.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080013432, on 23 December 2008.

2.  The applicant and counsel provide as new evidence medical opinions from various physicians and new arguments which consist of their interpretation of the November 2008 update to the TSGLI Procedural Guide, which were not previously considered by the Board.  Therefore, reconsideration by the Board is warranted.

3.  The applicant served in an enlisted status in the Army National Guard (ARNG) from 30 December 1986 through 26 June 1992.  On 27 June 1992, he was appointed a second lieutenant in the ARNG.  He was promoted to major on 
16 January 2004.

4.  On 3 November 2007, while doing the sit-ups portion of the Army Physical Fitness Test (APFT), he felt a pop in his back and subsequently developed lower extremity weakness and numbness.  He was diagnosed with Cauda Equina syndrome.

5.  On 18 July 2008, a Physical Evaluation Board (PEB) determined he suffered from a spinal cord infarct with residual paraplegia and awarded him a 100% disability rating.  The PEB recommended his placement on the Temporary Disability Retirement List (TDRL), with reexamination during December 2009.  On 9 November 2008, he was released from active duty and placed on the TDRL.

6.  He filed claims for TSGLI on 14 January 2008, 7 March 2008, and 25 April 2008, based on paraplegia.  These claims were all denied and he was informed of the decisions by letters dated 18 March, 23 April, and 22 May 2008.  His claims were denied because his condition was not a direct result of a traumatic event.

7.  The applicant provides medical opinions from various physicians.  These statements indicate that the cause of his injury cannot be determined.  

8.  Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on 11 May 2005, established the TSGLI program.  U.S. Army Combat-

Related Special Compensation has been designated as the lead agent for implementing the Army TSGLI program.  The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury.

9.  The TSGLI provides between $25,000.00 and $100,000.00 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.  As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage.  Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1.00 taken out each month to cover the cost of the TSGLI policy.  Soldiers paying for SGLI coverage cannot decline TSGLI - it is a package.  In addition, there is a retroactive program in which Soldiers who incurred a qualifying traumatic injury from 7 October 2001 through 30 November 
2005 while supporting Operation Iraqi Freedom and Operation Enduring Freedom or under orders in a combat zone tax exclusion area are covered regardless of whether they elected SGLI coverage or not.  Soldiers who elect SGLI coverage and incur a qualifying traumatic injury after 1 December 2005 (with the exception of some specific circumstances under which a traumatic injury will not be covered), regardless of their component (Active, Reserve, or National Guard) or the location in which they incurred the injury, will be covered by TSGLI.

10.  There are specific circumstances under which a traumatic injury will not be covered by TSGLI.  A qualifying traumatic injury is an injury or loss caused by application of external force or violence (a traumatic event) or a condition whose cause can be directly linked to a traumatic event.  Traumatic injuries covered may include, but are not limited to the following types of losses:

	a.  total and permanent loss of sight in one or both eyes;

	b.  loss of hand or foot by severance at or above the wrist or ankle;

	c.  total and permanent loss of hearing in one or both ears;

	d.  loss of speech;

	e.  loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints;

	f.  quadriplegia, paraplegia, or hemiplegia;

	g.  3rd degree or worse burns covering 30 percent of body or 30 percent of the face;

	h.  coma or traumatic brain injury; or

	i.  other traumatic injuries resulting in the inability to carry out two of the six activities of daily living (ADL), which are dressing, bathing, toileting, eating, continence, and transferring.  TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform two of the six ADLs for 30 days or more (15 days or more in the case of traumatic brain injuries).  ADL loss must be certified by a healthcare provider in Part B of the claim form, and ADL loss must be substantiated by appropriate documentation such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss.

11.  The TSGLI Procedural Guide, version 2.6, dated 2 August 2010, provides the following definition of external force:  "An external force is a force or power that causes an individual to meet involuntarily with an object, matter, or entity that causes the individual harm.  There is a distinct difference between internal and external forces.  Internal forces are forces acting between body parts, and external forces are forces acting between the body and the environment, including contact forces and gravitational forces as well as other environmental forces."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his TSGLI appeals and all the supporting documentation submitted was carefully considered.

2.  The applicant suffered a spinal cord injury.  It is not unreasonable to assume that forces generated by sit-ups contributed to his injury.  However, there is no evidence he sustained an injury from an external force.  Furthermore, a qualifying injury must be from an involuntary meeting with an external force.  Performing sit ups does not constitute an involuntary action.  The force, if any, experienced during the sit-ups was more likely an internal force.  Because the injury was not caused by an involuntary external force it is not covered by TSGLI.

3.  Therefore, purely as a matter of definition under TSGLI, he did not suffer a qualifying traumatic injury.  Unfortunately, there is no basis for this Board to substitute its judgment for that of the HRC TSGLI Division which determined the 

mechanism of the injury does not meet the TSGLI guidelines of a traumatic event and, as a result, the applicant did not incur a qualifying scheduled loss.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x_____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080013432, dated 23 December 2008.



      __________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100000290



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)